Volume 27 — Rhode Island Reports

<p>Peesent: Tillinghast, C. J., Douglas and Dubois, JJ.</p> <p>(1) Mandamus. Beneficial Association. Police Power of Corporations.</p> <p>Cap. VI art. 29, clause (i) of the by-laws of respondent society, provided as follows: “Members will cease to form part of the society (i): For defaming the members of the Directive Council or any member whatsoever for reasons connected with the society, causing dissension and disorders in the midst of the association.”</p> <p>Petitioners were expelled from the respondent society for the publication of an article in a public newspaper. On petition for mandamus, seeking restoration to membership: — •</p> <p>Held, that the article was clearly defamatory, holding the society and its officers up to ridicule for reasons connected with the society and tending to disorder and dissension in the association.</p> <p>Held, further, that the power of expulsion in a corporation is included in what may be denominated its police power, and a corporation may rightly establish by-laws providing for expulsion of members transgressing their reasonable provisions.</p> <p>Held, further, that the by-law in question was reasonable and that petitioners, being guilty of its infraction, were properly subjected to its penalty.</p>

<p>Bill in Equity to enjoin collection of a tax. Heard on bill, answer, and agreed statement of facts.</p>

<p>Mandamus. Heard on demurrer to petition, and demurrer overruled.</p>

<p>Trespass on the Case for negligence. Heard on petition of defendant for new trial, and granted.</p>

Indictment charging defendant with receiving stolen property. Heard on petition of defendant for new trial, and granted.

<p>Present: Douglas, C. J., and Dubois, J.</p> <p>(1) Public Statutes. Evidence. Variance.</p> <p>Under the provisions of Gen. Laws cap. 26, § 15, “Every act of incorporation shall be so far deemed a public act that the same may be declared on and given in evidence, without specially pleading the same,” an act amending the charter of defendant is properly admitted in evidence on behalf of the plaintiff, although not pleaded in the declaration.</p> <p>(2) Railroads. Statutes.</p> <p>Pub. Laws passed at the June session, 1836, entitled “An act in amendment of an act entitled ‘ An act to incorporate the New York, Providence & Boston Railroad Co.,’ ” passed June session, 1832, established, by section 2, a liability for damage by fire communicated from the engines of said corporation.</p> <p>Pub. Laws passed at the October session, 1846, in amendment of the acts of .1832 and 1836, provided: Sec. 9, “ Said railroad shall be managed, governed, and protected in all respects by the provisions of the charter and amendments heretofore granted to the New York, Providence and Boston Railroad Company.”</p> <p>Defendant was the successor to the New York, Providence & Boston Railroad Company, and subject to the duties, liabilities, and obligations imposed by said acts upon the latter corporation:—</p> <p>Held, that the amendment of 1846 was subject to the provisions of the charter and of the prior amendments thereto, and that defendant was liable therefor under the provisions of section 2 of the act of 1836.</p> <p>(3) Evidence. Fires from Locomotive Sparks.</p> <p>In an action to recover for injuries caused by fire alleged to have been communicated by defendant’s locomotive engines, proof of the presence of cinders on the roof of the building in question on a day prior to the fire is admissible as tending to show the possibility of fire being thus communicated at that distance from a locomotive.</p>

<p>Pbesent : Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Equity. Wills. Omission to Provide for Children. Cloud on Title.</p> <p>Gen. Laws R. I. cap. 203, sec. 22, provides “when a testator omits to provide in his will for any of his children, or for the issue of a deceased child, they shall take the same share of his estate that they would have been entitled to if he had died intestate, unless it appears that the omission was intentional, and not occasioned by accident or mistake.”</p> <p>Complainant was the widow and sole devisee under the will of her husband, who deceased leaving children him surviving; complainant was in possession of the real estate: — •</p> <p>Held, that a bill in equity seeking a decree declaring that the omission of the testator to provide for his children was intentional would lie for the purpose of removing a cloud upon complainant's title.</p> <p>(2) Wills. Omission to Provide. Parol Evidence.</p> <p>The intention of a testator under Geru Laws, cap. 203, sec. 22, may be shown by parol evidence, and need not appear in the will itself.</p>

<p>Pebsent: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Impeaching Record. Equity. Executions.</p> <p>Equity will permit the record of a common-law court to be impeached in appropriate proceedings brought to restrain the levying of execution.</p> <p>(2) District Courts. Absence of Justice from District.</p> <p>■Gen. Laws cap. 228, § 11, provides that whenever the justice of a District Court shall be absent or unable to serve by reason of sickness his duties shall be performed by the assistant justice:—</p> <p>Held, that any absence from any portion less than the entire district was insufficient to enable the assistant justice to perform the duties of the justice of the court on that ground.</p> <p>(3) Executions. Equity. Judgments. Injunctions.</p> <p>Equity will not enjoin the enforcement of a judgment at common law in consequence of default of a party in regard to steps which might have been successfully taken at law, unless for some reason of fraud, surprise, or adventitious circumstance, beyond the control of the party, and only in cases where it appears that the party has a meritorious defence to the action.</p> <p>(4) Attorney and Client. Injunctions. Equity. Judgments.</p> <p>Equity will not enjoin a judgment because of the negligence, incompetence, or mistake of an attorney, unmixed with fraud or unfairness of the adverse party.</p> <p>Where a cause was properly brought and entered in a District Court, but tried before an assistant justice without authority to act, but the defendant failed to take advantage of any of the methods open to him to review the judgment rendered by such-assistant justice, and failed to allege any meritorious defence to such action, equity will refuse to enjoin the enforcement of the judgment at law.</p>

<p>Trespass on the Case for negligence. Heard on petition of ■defendant for new trial, and judgment for defendant.</p>

<p>Appeal from decree of Probate Court confirming report of commissioners on claim of appellant against estate of testatrix of appellee. Heard on motion of appellee for new trial, and granted.</p>

<p>Phesent: Douglas, C. J., and Dubois, J.</p> <p>(1) Master and S&'vant. ' Pleading. Variance.</p> <p>In an action for negligence by servant against master for injuries arising out of defects in machine, where the declaration sets out the negligence in certain particulars, negligence in these particular's must be proven to sustain the action.</p>

<p>Motion for re-argument of case decided in 27 R. I.. 57. Motion denied.</p>

<p>PRESENT: Douglas, C. J., and Dubois, J.</p> <p>(1) Mechanic’s Lien. Separate Liens for Separate Estates Under Joint Contract.</p> <p>Where A., a sub-contractor, furnished materials and labor in the erection of two dwelling houses on land belonging to B. under a single entire contract with C., who was the contractor:—</p> <p>Held, that A. should file a separate notice of his intention to claim a lien upon-each house and a separate account for each house of the material furnished and used in it.</p>

<p>Debt on Bond. Heard on petition of defendant for new trial, and denied.</p>

<p>Criminal Complaint. Heard on motion to quash, and denied.</p>

<p>Present: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Assault. Police Officers.</p> <p>A police officer in making an arrest is justified in using sufficient force to-subdue a prisoner, whether there is any danger of harm to himself or not.</p>

<p>Trespass on the Case. Heard on petition of defendant for new trial, and granted on question of damages.</p>

<p>Present: Douglas, C. J., and Dubois, J.</p> <p>(1) Master and Servant. Unsafe Machinery.</p> <p>In an action for negligence in permitting a mechanical “blower” to remain uncovered and in permitting the floor in the vicinity of the “blower” to become in a slippery condition, in consequence of which plaintiff, a boy of 12 years of age, slipped upon the floor, causing his hand to enter the mouth of the “blower” and to be maimed, evidence considered, and in the light of the unsupported, unlikely, and contradictory statements of plaintiff, and in the absence of any evidence that it was customary to cover or guard blowers under such circumstances:—</p> <p>Held, that verdict was against the evidence.</p> <p>(2) Master and Servant. Fellow-Servant. Concurring Causes.</p> <p>Where the negligence of the master is combined with that of a fellow-servant, in producing the injury, and the negligence of neither is alone the efficient, cause, both are liable.</p> <p>(3) Concurring Causes. Negligence.</p> <p>The question of concurring proximate causes is for the jury under proper instructions.</p> <p>(4) Master and Servant. Providing Safe Apparatus. Question for Jury.</p> <p>The question what precautions were reasonably necessary to protect from an alleged danger from which plaintiff’s injuries resulted or whether the failure-to adopt a particular precaution constituted negligence under all the facts- and circumstances shown is, in general, for the jury; but it is error to submit the question to the jury whether the failure to take certain precautions was negligence, in the absence of any evidence that such precautions were usual under the circumstances or that it would have been prudent to take-them.</p>

<p>Debt on Bond. Heard on demurrer to defendants’ pleas, and demurrer sustained.</p>

<p>Trespass on the Case for libel. Heard on demurrer to declaration, and demurrer sustained.</p>

<p>Trespass on the Case for negligence. Heard on motion of defendant for remission of case from Appellate to the Common Pleas Division. Motion granted.</p>

<p>Assumpsit. Heard on petition of defendant for new trial. Judgment reduced.</p>

<p>PRESE~NT: Douglas, 0. J., Dubois and Blodgett, JJ.</p> <p>(1) Defaulted Cases. Court in Chambers. Ass~ssment of Damages.</p> <p>The provisions of Gen. Laws cap. 238, § 8, prescribe the maimer of proceeding before judgment in unanswered ipso facto defaulted cases, while Gen. Laws cap. 243, § 5, relate to the assessment of damages after judgment by default.</p> <p>The former ~1ass of cases go properly to the court in chambers for hearing on motion, which court may, after hearing and judgment, assess damages with or without the intervention of a jury.</p> <p>In default in answered cases judgment will be entered for the plaintiff as of course, and the case is then ready for assessment of damages without refer-once to the court in chambers, subject to the discretion of the trial judgo whether he will then and there assess damages, with or without a jury, or continue the case until another time or cause the same to be placed on tho motion calendar, and no exception lies to the exercise of such discretion.</p>

<p>Piibsbnt: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) School Committees. Deceit.</p> <p>Gen. Laws cap. 60, § 4, provides that: “The school committee shall locate all schoolhouses.”</p> <p>Declaration in an action for deceit charged that defendants, being a building committee authorized to construct a schoolhouse, falsely pretended to plaintiff, an ignorant foreigner, that they had authority to locate the schoolhouse and did so locate it, whereby the work of plaintiff had to be abandoned: — •</p> <p>Held, that the action would not lie, since plaintiff was bound to ascertain the limits of defendants’ powers at his peril.</p>

<p>PB~ESENT: Douglas, 0. J., Dubois and Blodgett, JJ.</p> <p>(1) Contr'ibutory Negligence. Master and Servant.</p> <p>Where a serv~iit in leaving his place of employment, proceeded after the lights had gone out, along a space between machinery whièh he knew to be encumbered, and while in the dark fell over an obstruction and was injured, he is guilty of such negligence as will bar recovery.</p>

<p>Petition in Equity in the nature of quo warranto, on facts fully stated in the opinion.-.■</p>

<p>Petition for re-argument of opinion reported in 24 R. I. 7. Heard, and new trial granted.</p>

<p>Exceptions from decision of justice of District Court that • defendant in an action of deceit was entitled to take poor debtor’s oath. Proceedings dismissed.</p>

<p>Peesbnt: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Stockholder’s Liability. Judgment Creditors.</p> <p>The remedy given by Gen. Laws cap. 180, § 22, to enforce the liability of a stockholder can only be exercised by a judgment creditor of the corporation. Andrews v. O’Reilly, 25 R. I. 231, distinguished.</p>

Trespass ON the Case against a town for neglecting to keep ■one of its highways safe and convenient for travellers. Heard •on demurrer to pleas, and demurrer overruled as to the second plea, and sustained as to the third plea.

<p>Trespass on the Case. Heard on demurrer to defendant’s pleas. Demurrer overruled.</p>

<p>Present: Douglas, C. J., Dubois and Johnson, JJ.</p> <p>(1) Municipal Corporations. Notice to City.</p> <p>The provisions of Gen Laws, cap. 36, §§ 15 and 16, requiring notice to a town or city of bodily injury or damage to property by reason of defect upon public highways, has no application to an action by an owner of property for damages to his business by reason of negligent delay of the city in constructing a sewer. In such case a compliance with Gen. Laws cap. 36, § 12, is sufficient.</p>

<p>Pkesent: Douglas, C. J., Dubois and Johnson, JJ.</p> <p>(1) Examination of Jurors. New Trial.</p> <p>While an employee is to a certain extent under the control of his employer, so that a party would be entitled upon the voir dire to ascertain whether a juror was employed in a manufactory where the husband of plaintiff was general manager, yet, although such examination was not permitted, as it did not appear that any of the jurors were so employed, a new trial will be refused.</p>

<p>Present: Douglas, C. J., Dubois and Johnson, JJ.</p> <p>(1) Highways. Town Council. Agency.</p> <p>The town council of a town laid out a highway and agreed to construct it if plaintiffs would advance money toward the payment for the work. Plaintiffs paid the sums agreed upon, and the work was commenced but abandoned before a passable way was constructed:—</p> <p>Held, that, if the town council had no power to bind the town, the money was paid without consideration, and if the council had power to make the contract, the town had broken it, and in either case plaintiffs were entitled to recover.</p>

<p>Replevin. Heard on demurrer to replication, and demurrer sustained.</p>

<p>Present: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Indictments. Fines. Polluting Public Waters. Nuisance.</p> <p>The offence of polluting the waters of the Providence river defined by Gen. Laws cap. 118, § 6, is one for which an indictment will lie, and the fine imposed by said chapter is properly recovered in this manner.</p> <p>(2) Indictments. Criminal Pleading. Duplicity.</p> <p>The joinder of distinct offences in the same indictment is neither cause for demurrer nor for a motion in arrest of judgment, but only for a motion to quash, which is always addressed to the discretion of the court. -</p> <p>(3) Indictments. Duplicity.</p> <p>To charge conjunctively the commission of cognate offences forbidden dis-junctively in a statute, does not make a count in an indictment bad for duplicity. , [</p> <p>(4) Indictments. Certainty. Misdemeanors.</p> <p>In charging misdemeanors, certainty to a common intent is sufficient.</p> <p>(5) Indictments. N^sance. Ownership of Property Defiled.</p> <p>In an indictment under Gen. Laws cap. 118, § 6, for polluting the waters of the Providence river, it is not necessary to allege the ownership of the property defiled.</p>

<p>Present: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Life Insurance Policies. Limitation of Right to Sue. Accrual of Cause of Action. Statute of Limitations.</p> <p>Rev. Laws, Mass. 1902, vol. 2, cap. 118, § 26, forbids a Massachusetts insurance company to limit the time within which suit may be commenced to less than two years after the cause of action accrues.</p> <p>Defendant’s policy contained a clause providing that no suit should be brought against it on any claim under it unless it was commenced within two years from the time when the right of action accrues, and a further clause that the sum named in the policy should be paid to the beneficiary within 24 hours after satisfactory proof of the death of the insured.</p> <p>Held, that, under the terms of the contract, the cause of action accrued when the sum specified in the contract became payable according to its terms, and that the beneficiary must procure suit to b.e brought by a person competent to sue within two years thereafter.</p>

<p>Petition for mechanic's lien. Heard on motion to dismiss, and denied.</p>

<p>Pkbsbnt: Douglas, C. J., Dubois and Johnson, JJ.</p> <p>(1) Amendment. Dismissal of Action. New Trial.</p> <p>Where, after sustaining a formal demurrer, plaintiff was granted leave to amend his declaration, and, failing to do so within the time limited, the action wa,s dismissed, a new trial will be refused.</p>

<p>Trespass on the Case under Gen. Laws cap. Ill, § 17-Heard on exceptions of both parties to rulings of District Court. Plaintiff’s exceptions overruled. Defendant’s exceptions sustained.</p>

<p>Trespass on the Case for negligence. Heard on demurrer ■to declaration, and judgment ordered for defendant.</p>

<p>Bill in Equity to enforce a lien. Heard on exceptions to report of master, and exceptions sustained.</p>

<p>PRESENT: Douglas, C. J., Dubois and Parkhurst, JJ.</p> <p>(1) Trespass Quare Clausum. Easements. Ways. Deeds.</p> <p>X., the owner of certain premises (lot A), had been in the uninterrupted use of a right of way over land of Y., adjoining the land of X., for seventeen years. X. then purchased a portion of the land of Y. (lot B.), moving his wall and gateway to enclose the strip purchased with his other land, and continued to use the way as appurtenant to lots A. and B. over the remainder of the land of Y. (lot C.). The deed from Y. to X. of lot B. granted to X. a right “to a convenient passway across the grantor's (Y’s) land to the highway at all times free and unobstructed from the said (X’s) land;”—</p> <p>Held, that the language used was broad enough to give X. an express right to use the way in the same manner and extent as he had been using it as appurtenant to both lots A and B.</p> <p>(2) Easements. Extinguishment. Dominent and servient estates.</p> <p>Semble; that where a portion of the servient estate is purchased by the owner of the dominant estate a right of way is extinguished only as to that portion of the servient estate purchased.</p>

<p>Bill of Interpleader. Heard, and relief granted.</p>

<p>Bill in Equity for the purpose of annulling an alleged voidable marriage. ■ Bill dismissed.</p>

<p>Present: Douglas, C. J., Dubois and Johnson, JJ.</p> <p>(1) Public Officers. Tenure of Office. Term of Office Fixed by. Law.</p> <p>The term of a legislative body which expires by law at a certain hour can not be extended beyond that hour, although members of the body hold their offices until their successors are qualified.</p> <p>Where the term of a board of aldermen expires at a time fixed by law, but the members hold their offices until their successors are qualified, after the expiration of such time, if a meeting of the board had been convened, the members of the old board could retain their places until their successors appeared and qualified, but they would be sitting as the new and not as the old board.</p> <p>(2) Public Officers. Limitation of Powers. Public Acts.</p> <p>Where the term of office of public officers is limited by law, any person dealing with the municipality is presumed to know the limitations of the powers of such officers.</p>

<p>Bill in Equity for accounting. Bill dismissed.</p>

<p>Peesbnt: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Procedure. Depositions. Jury.</p> <p>While the practice in this State is not to allow depositions introduced in a case to go to the jury room, yet, where the only fact contained in the deposition was one which could not have been forgotten by the jury, a new trial will be refused, although the deposition was by inadvertence permitted to be taken by the -jury.</p>

<p>Pbesent: Douglas, C. J., Blodgett and Dubois, JJ.</p> <p>(1) Mechanic’s bien. Account or Demand.</p> <p>In a petition for mechanic’s lien, the paper filed by petitioners as a commencement of legal process was as follows: “A. to B., debtor. November 30, 1904. To amount due under written contract for the erection of a house on the corner oí Berkshire and Salina Streets in the City of Providence, $1,550; for extra work done on said house, $200, total $1,750.”</p> <p>Held, that the first item was a sufficient compliance with the requirements of the statute, as the sums due the petitioners were fixed by contract, and not dependent upon an account.</p> <p>Held, further, that the item for extra work was not sufficient. The sum stated was not agreed upon or fixed, but was the result of computation, the elements of which should have been the subject of an account.</p> <p>(2) Mechanic’s Lien. Petition.</p> <p>A petition for mechanic’s lien filed under the provisions of section 9, chapter 206, of the General Laws, which contains a copy of the contract between the parties, but which fails to state how far the work has progressed, what installments are due and what payments hav ebeen received, is faulty, but is subject to amendment.</p>

<p>Peesent: Douglas, C. J., Blodgett and Johnson, JJ.</p> <p>(1) Municipal Corporation. Contracts. Ultra Vires.</p> <p>An executory contract by an overseer of the poor on behalf of a town, whereby the town obligated itself to furnish the plaintiff a certain quantity of millc for a stated period at a fixed price, is not a contract necessary or convenient for the transaction of the business of the town under the provisions of Gen. Laws cap. 36, sec. 2.</p>

<p>Present: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Guardian and Ward.</p> <p>Where, after the appointment of a guardian, a creditor proceeded to attempt the collection of his debt in the manner prescribed by Gen. Laws cap. 196, sections 28 and 29, and obtained judgment against the ward, as the guardian was notified of the claim and suit, the property of the ward in the hands of the guardian was bound by the judgment; and the judgment creditor was entitled to enforce the penalty of the bond, upon proof that the guardian had neglected to apply the estate of the ward to the payment of the debts.</p>

<p>Present: Douglas, C. J., Dubois and Johnson, JJ.</p> <p>11) Probate Law and Practice. Amendment of Record of Probate Court. Appeals. ,</p> <p>A decree of a Probate Court ordering the records of an estate to be amended so as to include an order of notice of the appointment of an executor, as provided by Gen. Laws cap. 212, sec. 33, theretofore made but not entered upon the records, is not an order from which a creditor of the estate has a right of appeal.</p>

<p>Debt on Judgment. Heard on demurrer to amended plea, and demurrer sustained.</p>

<p>Bill in Equity. Heard on motion of respondent to vacate decree pro confesso, and granted with conditions.</p>

<p>Assumpsit. Heard on motion to dismiss, and denied.</p>

<p>Petitions eor Mechanics’ Liens. Heard on exceptions to report of master. Exceptions overruled.</p>

<p>Present: Douglas, C. J., Johnson and Parkhurst, JJ.</p> <p>(1) Negligence. Unknown Cause. Res Ipsa Loquitur.</p> <p>Where the thing which .occasioned an injury is unknown the maxim res ipsa loquitur has no application; since, where the thing is unknown, it can not be said to speak or to indicate the existence of causative negligence.</p> <p>(2) Common Carriers. Negligence. Unknown Cause of Injury.</p> <p>Declaration for negligence against a common carrier alleged in a single count that there were in the running-board, or step, of the car certain apertures, projections, and-defects negligently made or permitted to be and remain by the defendant, the nature whereof was and is unknown to plaintiff and which she could not more particularly describe, and that her foot or shoe was caught upon the running-board, or step, by reason of said apertures, projections, or defects, whereby the heel of her shoe was torn off and she was thrown and injured:—</p> <p>Held, that the description of the alleged defects was inconsistent and contradictory. and that, further the declaration charged simply that defendant was guilty of negligence without alleging in what it consisted.</p>

<p>Present: Douglas, C. J., Dubois and Johnson, JJ.</p> <p>(1) Wills. Children or Issue. Adopted Child.</p> <p>A. by will devised one-sixth part of her estate “to the children or issue of my brother B., deceased,” and further provided, “The children or issue of each of my deceased brothers shall take per stirpes (the children or issue of any deceased child of any of my said brothers taking the same share which their deceased parent would have taken if living. ”</p> <p>B. deceased in 1871, leaving one child, C. (who died in 1888, leaving four children), and an adopted child D.</p> <p>The will was made in 1898:—</p> <p>Held, that the children of C. took, not as descriptive heirs of the body of B., ■ but under the terms of the will, such share only as C. would have taken if living at decease of testatrix.</p> <p>The court having found "that there was a latent ambiguity in the use of the words “children or issue,” parol evidence was offered by claimants, and held, that the testimony showed that no distinction was intended by testatrix between the natural born child and the adopted child of B.</p> <p>(2) Presumption of Death from absence of Seven Years. Burden of Proof.</p> <p>The fact that a person has been absent from his home and unheard of by his family for seven years raises the presumption of his death, which presumption is strengthened by further lapse of time. And the burden of proof rests upon the party asserting .the party to be living.</p>

<p>Assumpsit. Heard on exceptions to ruling of District Court, and exceptions sustained.</p>

<p>Bill in Equity on facts set forth in opinion. Heard on bill, answer, and proof, and bill dismissed.</p>

<p>Assumpsit. Heard on petition of defendant for new trial, and granted.</p>

<p>Trespass on the Case. Heard oil demurrers to declaration, and demurrers sustained.</p>

<p>Trespass on the Case. Heard on petition of plaintiff for new trial after nonsuit, and denied.</p>

<p>Present: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Common Law of State. Statute of Frauds and Perjuries. Execution and Attachment of Equitable Interests.</p> <p>The statute of 29 Car. II, cap. 3, § 10, commonly called the statute of frauds and perjuries, introduced into the colony, by act of the General Assembly, February, 1749, is still a part of the common law of the State, so as to render equitable as well as legal estates liable to levy upon execution. Kendall v. Gibbs, 5 R. I. 525, overruled.</p> <p>Gen. Laws cap. 253, § 10, of attachments, is broad enough to include equitable as well as legal interests, thereby extending the common law of the State by making that attachable on original writ which was already subject to levy upon execution.</p> <p>(2) Fraud. Bankruptcy. Equity.</p> <p>The effect of a deed taken by a debtor in the name of a third party, to prevent his creditors from subjecting the property to the payment of their claims, is . to raise a resulting trust therein to him for the benefit of those of his creditors who shall take the necessary steps to enforce their claims by prosecuting them to final judgment and execution at law, and afterwards by proceeding to establish the trust in equity. Where only one creditor takes such steps the trust can be established only for him, and hence the property so affected can not pass to the trustee in bankruptcy, since it could not be distributed among the general creditors, but must be applied for the benefit of the execution creditor.</p>

<p>Trespass on the Case for negligence. Heard on petition of defendant for new trial, and granted.</p>

<p>Pkbsent: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Conspiracy. Indictments.</p> <p>An indictment charging defendants with conspiring to cheat by false pre-tences is good, although the particular means and devices are not stated.</p> <p>(2) Conspiracy. Indictments.</p> <p>An indictment charging defendants with a conspiracy to pervert the cause of justice is good, both at common law and under the statute 33 Edw. I, stat. 2, “de conspiritoribus.”</p> <p>(3) Indictments. Conspiracy. Criminal Pleading.</p> <p>In an indictment charging conspiracy it is not necessary to allege or prove that a defendant was to be benefited thereby.</p> <p>(4) Indictments. Conspiracy. Criminal Pleading.</p> <p>In an indictment charging conspiracy it is not necessary to allege that the object of the conspiracy was accomplished.</p> <p>(5) Indictments. Criminal Pleading. Surplusage.</p> <p>The conclusion of an indictment for an offence punishable at common law against the form of the statute may be rejected as surplusage.</p>

<p>Present: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) Equity. Mortgages. Agency.</p> <p>A. was the owner of a parcel of land which he purchased through B., a real estate broker, subject to a mortgage for $1,600 to C. C. transferred the mortgage, July 16, 1901, to D., but the transfer was not recorded until July 26, 1904. April 13, 1903, A. paid B. $700 on account of the mortgage, taking receipt signed by B., individually, assuming that B. was the agent of the owner of the mortgage, but not asking to see the note or mortgage. It appeared that A. did not inquire as to the agency; that B. did not state he was such agent, and in fact never had note or mortgage in his possession; that D. acquired the mortgage through B., but did not employ him to secure it, and received the mortgage direct from C; that B. made payment of interest to D., representing he was acting for the owner of the estate, but D. paid him nothing and did not employ him to collect the interest. B. failed to account for the amount of principal paid him by A:—</p> <p>Held, that the burden of proving the agency of B. was upon A., who alleged the same.</p> <p>Held, further, that the non-recording of the transfer of the mortgage by D. had not affected A.</p> <p>Held, further, that, on the above facts, the agency of B. for D. was not established.</p>

<p>Trespass on the Case for negligence. Heard on petition of defendant for new trial, and denied.</p>

<p>Trespass on the Case for negligence. Heard on motion for re-argument after opinion reported in 26 R. I. 427. Motion denied.</p>

<p>•Bill in Equity. Heard on bill and answers, and dismissed.</p>

<p>Petition for writ of mandamus on facts fully set forth in opinion. Heard on answer to alternative writ. Prayer granted.</p>

<p>Present: Douglas, C. J., Dubois and Blodgett, JJ.</p> <p>(1) New Trials. Transcript of Evidence.</p> <p>A transcript of evidence approved and allowed by the justice presiding at the trial of a cause is, upon petition for new trial, prima facie a complete record of all the evidence if the grounds set out in the petition for new trial involve a consideration of all the evidence. If the opposing party contends that the record presented is deficient or incorrect, he must present and support his corrections by affidavit.</p> <p>(2) New Trials. Transcript of Evidence.</p> <p>Where a party upon petition for new trial intends to confine himself to a particular issue, a transcript of the evidence affecting such issue is sufficient.</p> <p>(3) Wills. Signature to Will by Testator.</p> <p>Where a testator is so weak, physically, that he is unable to guide the motion of a pen which he holds, his hand may be guided by another person. In such case this is a signing by the testator himself. The act is his own with she assistance of another, and not the act of another under authority from him.</p>

<p>Bill in Equity. Heard on demurrers to bill, and demurrers overruled.</p>

<p>Bill in Equity on facts set forth in opinion. Heard on demurrer and answer.</p>

<p>Trespass on the Case for negligence. Heard on motion of plaintiff to vacate order directing the case to be remanded to the Common Pleas Division with direction to enter judgment for defendant. Motion denied.</p>

<p>Mandamus.- Heard on petition for writ, and denied.</p>

Trespass on the Case under Gen. Laws cap. 254, § 20, against a garnishee who failed to file his affidavit. Heard on exceptions to ruling of District Court and exceptions overruled.

<p>Present: Douglas, C. J., Dubois, Blodgett, and Johnson, JJ.</p> <p>(1) Negligence. Merchant and Customer.</p> <p>A verdict, based on competent evidence, that defendant was guilty of negligence in maintaining a slippery pavement directly below and sloping downward from a doorstep five and one-half inches in height at such an angle as to be dangerous to persons who were invited to use it in patronizing the store, whereby plaintiff while in the exercise of due care was injured, sustained.</p> <p>(2) Expert Evidence.</p> <p>Where the construction and material of the floor alleged as the cause of the accident were not in common use, expert testimony by those familiar with such floors is admissible.</p>

<p>Present Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Elections. Nomination Papers.</p> <p>While under Pub. Laws cap. 1078, § 8, the signing of nomination papers is a disqualification for participation in the caucus of any party, and the participation in the caucus of a party is a disqualification to sign nomination papers, yet the signing of nomination papers of a candidate of one political party does not disqualify the signer from signing nomination papers of a candidate of another political party. Following Atty.-Gen. v. Clarke, 26 R. I. 470.</p>

<p>Phesbnt: Douglas, C. J., Dubois, Johnson, and Parkhurst, JJ.</p> <p>(1) New Trial.- Witnesses.</p> <p>Where no attempt is made to impeach the testimony of witnesses upon the trial, it is too late, on petition for new trial, to attack their credibility by argument which should bé addressed to the jury.</p> <p>(2) Parent and Child. Measure of Damages.</p> <p>A parent is not only entitled to the earnings of a minor, but is bound also to support the child during minority. Hence the measure of damages for loss of the minor’s services is the total earning capacity of the child plus the expenses incurred.</p> <p>(3) New Trial.</p> <p>The fact that a jury disregarded an erroneous instruction, provided they found a verdict which was justified by the evidence, furnishes no ground for a new trial.</p>

<p>Present: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Damage by Dogs.</p> <p>Gen. Laws cap. Ill, § 5, ,!Every person keeping or harboring in his house or on his lands any dog, or knowingly suffering the same to be done by any other person, shall be liable for all damages done by said dog in the same . manner as if he were the owner thereof,” imposes upon the keeper or harborer of a dog the same liability imposed by said chapter upon the owner, without further defining that liability, and does not impose a liability for acts of the dog committed within the enclosure of the owner or keeper of suqIi dog beyond his common-law liability, that is, except upon proof of knowledge of a vicious propensity.</p>

<p>Present: Douglas, C. J., Dubois, Johnson, and Parkhurst, JJ.</p> <p>(1) Implied Contracts. Domestic Relations.</p> <p>In the absence of any evidence, the presumption arises that services rendered between members of the same family are gratuitous, but this presumption yields to evidence, so that if the circumstances in which the services are rendered are such as to show a reasonable and proper expectation that compensation is to be made, the plaintiff will be entitled to recover.</p> <p>If the persons are related, but not living together, this doctrine has no applD cation, and even in the case of members of the same family the circumstances in which the services were rendered should be submitted to the jury for their determination as to whether 'they show a reasonable and proper expectation that compensation was to be made.</p>

<p>Present: Douglas, C. J., Dubois, Johnson, and Parkhurst, JJ.</p> <p>(1) Common Carriers. Negligence. Riding on Running-Board.</p> <p>It is not negligence -per se to occupy a position on the running-board of a car when there is'no vacant seat in the car nor standing room between the seats.</p> <p>If a common carrier accepts passengers whom it can not accommodate inside its car it must do all that human care and vigilance reasonably can to prevent accident happening to them. A passenger occupying such a position has the right to suppose that the car will be run with due care, and this requires greater precaution when passengers are occupying the running-board than when all are safely seated.</p> <p>Where it appears that a passenger, standing on the running-board of a car, being a strong man and holding on with both hands, receives a shock sufficient to throw him from the car, a prima facie case is shown on which he is entitled to go to the jury on the issue as to whether the car was properly managed.</p> <p>(2) Evidence. Expert Witnesses.</p> <p>Upon the issue as to whether a car was proceeding as usual when an accident occurred, or was propelled at an extraordinary rate of speed which would be likely to cause more violent and dangerous jolting and swaying than common, testimony upon this subject is admissible if offered by competent witnesses who have previously been qualified, by showing that they have travelled on the route and know the ordinary rate of speed at the place in question.</p>

<p>Assumpsit. Heard on petition of defendants for new trial, and granted.</p>

<p>Assumpsit. Heard on agreed statement of facts. Judgment for plaintiff.</p>

<p>Pbesent: Douglas, C. J., Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Contracts. Construction. 'Warranties.</p> <p>Plaintiff entered into following agreement with defendant: “We will furnish and place in position ready for use, exclusive of mason work, the McClave apparatus, consisting of the McClave improved twin-lever grate and the McClave Argand Blower, undereach of your boilers for the sum of $766.75. The McClave system is adapted for the burning of fine anthracite fuel; workmanship and material first-class in every particular. Should you wire us the acceptance of the above proposition we will have the apparatus shipped the latter part of this week, so that same can be installed on Sunday — it might be possible that part of the work would have to go over until the following Sunday, but there will be no delay in the operation of your plant.”</p> <p>Defendant replied: “Will accept your proposition for the McClave apparatus for our boilers according to your letter of the 25th. Ship at once”:—</p> <p>Held, that the clause relative to delay in operation of the plant applied to the work of installing the apparatus, and not to the operation of the plant after the completion of the work of installing.</p> <p>Held, further, that the clause “adapted for the burning of fine anthracite fuel” was not a warranty that with the apparatus installed under defendant’s boilers and burning fine anthracite fuel, such boilers would produce the amount of steam required for the successful operation of defendants’ plant.</p> <p>(2) Contracts. Warranties.</p> <p>Where a known described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, defined, and described thing is actually supplied, there is no implied warranty that it shall answer .the particular purpose intended by the purchaser. Nor can the purchaser rely upon statements and assertions made by the maker in circulars and advertisements concerning the article.</p>

<p>Probate Appeal. Heard on petition of appellant for new trial, and denied.</p>

<p>Probate Appeal. Heard on petition of a creditor for a trial, under Gen. Laws cap. 251, § 2, and petition denied.</p>

<p>Mandamus. Heard on constitutional question.</p>

<p>Assumpsit. Heard on agreed statement of facts.</p>

<p>Ejectment. Heard on defendant’s bill of exceptions after verdict for plaintiff, and exceptions overruled.</p>

<p>Present: Douglas, C J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Certifying Constitutional Questions to Supreme Court.</p> <p>Section 475 of the court and practice act authorizes a District Court to certify a constitutional question to the Supreme Court only in the case of an offence within its jurisdiction “to try and determine, ” and only in such a case when it has found the defendant “guilty.”</p>

<p>Certiorari. Heard on petition for writ, and dismissed.</p>

<p>Assumpsit. Heard on petition of defendant for new trial, and granted.</p>

<p>Trespass on the case for negligence. Heard on motion of plaintiff for re-argument. Denied.</p>

<p>Pebsbnt: Douglas, C. J., Dubois, Blodgett, Johnson, and Parlchurst JJ.</p> <p>(1) Fire Insurance. Arbitration. Condition Precedent.</p> <p>Where a policy of fire insurance in the standard form as prescribed by General Laws, chapter 183, contained a provision for ascertaining the amount of loss by arbitration, and provided further that no suit on the policy should be sustainable until after full compliance by the insured with such requirement, such provisions constitute a condition precedent to any right of action by the insured.</p> <p>(2) Fire insurance. Arbitration. Condition precedent.</p> <p>Where there is a valid agreement between an insurer and the insured that in case of loss no action shall be sustainable until the amount of loss has been first ascertained by arbitration, it is incumbent upon the plaintiff to prove performance or a valid excuse for non-performance. An attempted arbitration which failed without fault on the part of the insurer is not such a compliance with the contract as will permit the plaintiff to maintain an action.</p>

<p>Present: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Notice to quit. Service on wife.</p> <p>Service of the notice to quit upon the wife of a tenant is sufficient compliance with the requirements of the statute.</p>

<p>Pbesent: Douglas, C. J., Dubois, Blodgett, and Parlchurst, JJ.</p> <p>(1) Life Tables. Permanent Injury. New Trial.</p> <p>Where a declaration contained no allegation of permanent injury but plaintiff was allowed to introduce without objection evidence tending to prove such a condition, the admission of life tables is not ground for new trial, although such tables are properly admitted only where permanent injury is averred and proved.</p> <p>(2) Procedure. Motion to Increase ad Damnum. Continuance.</p> <p>Semble, the discussion of the reasons for increasing the ad damnum in a writ should not be permitted in the presence of jurors eligible to sit in the trial of a cause. The allowance of such discussion furnishes good ground for a continuance and the refusal of a motion for such continuance constitutes a sufficient basis for exception.</p>

<p>Peesent: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Common Carriers. Street Railways. Evidence.</p> <p>Where defendant, a common carrier of passengers, had been allowed, without objection, to place in evidence a plan of the street where the accident occurred, showing the location of “white poles” and other details, evidence explaining the meaning of the “white poles,” and their relation to the rules as to operating cars, is admissible.</p> <p>(2) Street Railways. Negligence. Starting Car by Unauthorized Person.</p> <p>A common carrier of passengers by street cars is not responsible for the act of an unauthorized person in giving the signal to start a car, which had come to a full stop, while a passenger was alighting from the car, if the accident could not have been prevented by the exercise of due care after the giving of such unauthorized signal.</p>

<p>Present: Douglas, C. J., Dubois, Blodgett, and Johnson, JJ.</p> <p>(1) Breach of Marriage Promise. Evidence of Seduction in Aggravation of Damages.</p> <p>In an action for breach of promise of marriage, evidence of seduction is not admissible in aggravation of damages. Mainz v. Lederer, 21 R. I. 370, overruled.</p> <p>(2) Procedure. Restricting Argument of Counsel.</p> <p>The court presiding at a jury trial must exercise a sound discretion in confining counsel to the discussion of the vital issues in the case; and unless this discretion is abused, a new trial will not be granted because of restrictions placed upon the argument of counsel.</p>

<p>Assumpsit. Heard on petition of defendant for new trial, and judgment ordered for defendant.</p>

<p>Petition for mechanic’s lien. Heard on re-argument, upon petitioner’s motion, and previous opinion affirmed.</p>

<p>Present: Douglas, C. J., Dubois, Blodgett, and Parkhurst, JJ.</p> <p>(1) Negligence. Fellow-servants. Master and Servant.</p> <p>Plaintiff, employed by defendant to clean switches on the road, was riding on one of defendant’s cars, on Sunday, to reach a switch, having given the conductor an employee’s ticket, furnished by defendant, when he was injured by a collision between the car and another car of defendant:—</p> <p>Held, that plaintiff sustained the relation of an employee rather than that of a passenger, and the negligence was that of a fellow-servant.</p> <p>(2) Master and Servant. Sunday Law.</p> <p>Held -further, that, even if the operation of the cars on Sunday was an illegal act, under Gen. Laws cap. 281, § 17, plaintiff was engaged in the like illegal purpose of performing work of his ordinary calling, and was without remedy.</p>

Petition for writ of mandamus. The facts are stated in the opinion. Heard on respondent's appeal from an order of the Superior Court granting the writ.

<p>Appeal in Equity from decree of Superior Court of the county of Providence. Decree reversed, and bill dismissed.</p>

<p>Present: Douglas, C. J., Dubois, Blodgett, Johnson, and Parlchurst, JJ.</p> <p>(1) Common Carriers. Duty to Provide Safe Place for Passengers to Leave Cars.</p> <p>Where the evidence of plaintiff disclosed that defendant stopped its car to allow her to alight at a place where there was a depression in the ground which had evidently been there for a long time; that defendant had estab- . lished a stopping place near this point, and that the depression was so near * the rail that the running-board of the car hid it from her view as she sat in the car, and that she stepped into the depression as she alighted, the evidence was sufficient to import notice to defendant of the unsafe condition of the ground, and made out a prima facie case which should have been submitted to the jury.</p> <p>(2) Common Carrier. Duty to Provide Safe Place for Passengers to Leave Cars. Invitation to Alight.</p> <p>When a common carrier stops a car and the conductor calls out the destination of a passenger, it is a sufficient invitation to such passenger to alight there, and he is justified in believing that he can alight with safety.</p>

<p>Present: Douglas, C. J., Dubois, Blodgett, Johnson, and Parlchurst, JJ.</p> <p>(1) Criminal Pleading. Nuisances. Indictments.</p> <p>Gen. Laws cap. 92, § 5, provides that “Every person who shall let any building or tenement owned by him or under his control for any of the purposes enumerated in section one of this chapter, or who shall knowingly permit any such building or tenement or part thereof to be so used while under his control, . . . shall be deemed and taken to be guilty of aiding in the maintenance of such nuisance.” . . .</p> <p>Held, that the effect of the section was, not to make the acts set forth substantive offences in themselves, but its purpose was to punish those guilty of aiding in the maintenance of active nuisances.</p> <p>Held, further, that an indictment based upon such section must aver, in clear, direct, and not argumentative words, that the premises let were used for the illegal purpose for which they were- let or that a common nuisance was maintained therein.</p>

<p>Pbesent: Douglas, C. J., Dubois, Johnson, and Parkhurst, JJ.</p> <p>(1) Bight of Next of Kin to Appointment as Administrator.</p> <p>Where there is a contest between two parties for appointment as administrator, both suitable, and one of whom is next of kin, the statute gives the right of appointment to the next of kin.</p>

<p>Present : Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Wills.</p> <p>Testamentary devise to widow, providing that she should at her pleasure retain the homestead estate so long as she should wish personally to occupy it, and providing further: “My wife has expressed a wish to purchase” (the homestead estate) “I have no objection. Not less than $12,000 should be paid for it. The estate thus purchased should be subject to her disposal by will or should she die intestate should descend to her heirs at law. ”</p> <p>Testator devised to his sons certain lots, including the lot later referred to as the “front lot,” on the homestead estate, and the will further provided: “If the tract next north of the three portions herein last devised shall within two years have been bought by my wife, and with the understanding that the estate thus acquired shall descend to the sons, one or all whom she has brought forth, then this devise of the lots next south of the lane to the water fence shall be void in so far as the front lot is concerned.” This lot he devised to his daughter D.</p> <p>The widow purchased the tract within two years after death of testator.</p> <p>D. deceased, leaving her surviving a husband and children, the complainants in the case-.</p> <p>After the death of D., the widow conveyed by warranty deed the premises deeded to her, as above stated, to E., her heirs and assigns.</p> <p>On the above facts: — ■</p> <p>Held, that it was the intention of testator that the widow, if she purchased the estate, should take an estate in fee simple; that, if she had seen fit to provide in some legal manner that the estate should at her death go to her sons, the contingency anticipated in the will would have arisen, and the devise of the “front lot” would have been annulled.</p> <p>Held, further, that, the widow having put it out of her power to do so by her conveyance in fee, the devise of the lot was not rendered void, and the title thereto remained vested in the sons as provided by the will.</p>

<p>Special case, stated for an opinion, under section 323, ■chapter 18, of the court and practice act.</p>

<p>Trespass on the Case for negligence. Heard on exceptions of defendant after denial of motion for new trial by Superior Court, and exceptions sustained and new trial granted.</p>

<p>Pkesbnt: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Stockholders’ Liability. Method of Enforcing it.</p> <p>Cons, of Nebraska, 1876, Art. XI, § 7, provides “Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors over and above the amount of stock by him held to an amount equal to his respective stock or shares so held for all its liabilities accruing while he remains such stockholder.”</p> <p>Art. XI, § 4, provides “In all cases of claims against corporations the exact amount justly due shall be first ascertained, and after the corporate property shall have been exhausted the original subscribers thereof shall be individually liable to the extent of their unpaid subscription and the liability for the unpaid subscription shall follow the stock.”</p> <p>Declaration in assumpsit against a stockholder, to recover the full amount of the par value of the stock held by him under the above provisions, alleged that the bank was adjudged insolvent by order of the Nebraska court, and plaintiff was appointed receiver and set forth the facts upon which defendant’s liability was alleged to have accrued: — ■</p> <p>Held, on demurrer, that, under the decision of the Supreme Court of Nebraska in Farmers Loan & Trust Co. v. Funk, 49 Neb. 353, and Van Pelt v. Gardner, 54 Neb. 701, the special individual'liability of a stockholder is to be used as a trust fund for the benefit of the creditors of the corporation, enforced by proceedings in equity, in which proceedings all creditors and all debtor stockholders should be made parties in order that the entire indebtedness of the corporation for which the stockholders are liable may be ascertained and determined in one action.</p> <p>Held, further, that it was the duty of the plaintiff to have included the defendant in the equity suit in Nebraska for the purpose of determining his liability in such proceedings.</p> <p>(2) Stockholders’ Liability. Notice to Corporation not Notice to Stockholders.</p> <p>Held, further, that the declaration was insufficient because it contained no averments that defendant had notice of or was a party to the proceedings in the Nebraska court tending to establish his secondary liability as a stockholder of the bank to the creditors.</p> <p>Held, further, that, under the law of Nebraska, the bank not being a necessary party to the proceedings to enforce the statutory liability of stockholders under article XI, section 7, service upon it could not be construed as notice' to all necessary parties.</p> <p>Held, further, that the fact that the proceedings against the bank and its. stockholders were combined in the equity suit did not affect the matter. The bank was a necessary party in order to establish against it as a finality the amount of the indebtedness for which the stockholders were liable, and therefore was entitled to notice; but so far as the proceedings affected the-individual liability of the stockholder, such stockholders were entitled to' notice of the pendency of the bill.</p>

<p>Peesbnt: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Garnishment. New Trial. Accident and Mistake.</p> <p>January 27, 1905, the personal estate of defendant was attached- in the hands of the bank. February 2, 1905, the assistant treasurer of the bank made affidavit as to the amount due defendant. February 2,1906, the bank was charged as garnishee for the amount disclosed and execution issued, payment of which was refused on the ground that the amount disclosed was by accident and mistake stated to be 150 more than was due defendant, this-amount having been withdrawn the day previous to the attachment, but not entered upon the account when it was examined the day of the service of the writ. The officer who made the examination failed to inquire as to whether any withdrawals had been made. On petition of garnishee for a new trial:' — ■</p> <p>Held, that the facts disclosed a case of neglect, on the part of the garnishee, affording no ground for new trial.</p> <p>(2) Garnishee not Entitled to Notice when Charged.</p> <p>A garnishee, having been notified of the suit by the service of writ, is not entitled to further notice of the hearing at which it is charged.</p>

<p>Bill in Equity brought to obtain the opinion and instruction of the court.</p>

<p>Assumpsit. Heard on petition of defendant for new trial, and denied.'</p>

<p>Bill in Equity seeking the relief set forth in the bill.</p>

<p>Trespass and Ejectment. Heard on petition of defendants for new trial and denied.</p>

<p>Present : Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Guardian and Ward. Adverse Possession by Guardian to Ward.</p> <p>The relation of guardian and ward is of such a nature that during its existence the lawful possession by the guardian of the ward’s real estate can not, as matter of law, by any act of the guardian be converted into a possession adverse to the ward so as to found a title by adverse possession in the guardian.</p>

<p>Present: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p> Trespass. Pleading. Evidence. </p> <p>Where in an action of trespass for an assault, to which the general issue had been pleaded, evidence was introduced without objection which established a justification, while such evidence was inadmissible without a special plea, it is too late to urge such objection on petition for new trial.</p>

<p>Pubsbnt: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Probate Appeal. Verdict.</p> <p>On an appeal from a decree of a Probate Court, the issue being whether the appellant is a suitable person to be appointed administratrix, a verdict finding affirmatively the facts which under the statute entitle the appellant to be appointed administratrix is in due form.</p> <p>(2) Probate Appeal. Evidence.</p> <p>On a probate appeal, the issue being whether the appellant is a suitable person to be appointed administratrix, the competency of the person appointed to such office not being disputed, evidence as to the competency of the latter properly excluded.</p>

<p>Pbesent: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p> Replevin. Pleading and Practice. Liens. </p> <p>In an action of replevin, the pleas setting up a lien in favor of the defendant, upon the goods, the plaintiff having proved his ownership and right to possession makes a prima fade case, and the burden of proving the liens is on the defendant.</p> <p> Pleading and Practice. Bill of Exceptions. New Trial. </p> <p>While the court and practice act gives the Superior Court jurisdiction of motions for a new trial in certain cases, it does not prescribe that such a motion must be made, where exception has been taken to a nonsuit, before a bill of exceptions can be taken to the Supreme Court.</p> <p> Pleading and Practice. Bill of Exceptions. New Trial. </p> <p>The prayer for a new trial appended to a bill of exceptions taken to the Supreme Court does not vitiate the proceedings.</p>

<p>Peesent: Douglas, O. J., Dubois, Blodgett, and Parldiurst, JJ.</p> <p>(1) Street Railways. Negligence. Due Care.</p> <p>Where it appeared from the evidence, that intestate rose from amend seat of an open car while it was in rapid motion and rocking violently, and stood near the side of the car facing the rear, with one hand on the back of the seat on which she had been sitting, while the other hung at her side, the condition of the road being known to her, the exercise of due care is not shown and a verdict was properly directed for the defendant.</p>

<p>Appeal from decree of Probate Court. Heard on appellant’s bill of exceptions, after verdict for appellees in the Superior Court. Exceptions overruled.</p>

<p>Mandamus. Heard on appeal from decision of Superior Court. Appeal dismissed.</p>

<p>Present: Douglas, C. J., Dubois, Blodgett, and Johnson, JJ.</p> <p>(1) Negligence. Elevators.</p> <p>Plaintiff, who had volunteered to assist a janitor in employ of defendant, and who was familiar with the premises, entered front door of building, at five o’clock in the morning, and proceeded along a dark passage leading to the elevator, and, the door of the shaft being open, fell to the cellar. There was no evidence that any employee of defendant opened the door, after it had been locked the night before:—</p> <p>Held, that defendant was not guilty of negligence in not keeping an employee at the elevator during the night to see that the door was kept closed, and that a nonsuit was properly granted on that ground.</p> <p>(2) Negligence. Evidence. Elevators.</p> <p>In an action based on alleged negligence of defendant, whereby plaintiff fell through the open, door of an elevator-shaft, evidence of previous accidents is properly excluded, where it appears that plaintiff knew the elevator sometimes crept up or down, and also because the open door was an obvious danger.</p> <p>(3) Negligence. Evidence. Elevators.</p> <p>In an action based on alleged negligence of defendant, whereby plaintiff fell through the open door of an elevator-shaft, evidence as to the capability of the door to be opened without a key is properly excluded, since it would lead to mere conjecture as to how the accident occurred, and if it was so opened the defendant was not liable by reason of such possibility.</p> <p>(4) Negligence. Res ipsa loquitur.</p> <p>The doctrine of res ipsa loquitur has no application to a door of an elevator accidentally left open, whereby plaintiff, falling through, is injured.</p>

<p>Pkesent: Douglas, C. J., Dubois, Johnson, and Parkhurst, JJ.</p> <p>(1) Master and Servant. Negligence. Inspection. Defects not Obvious.</p> <p>Plaintiff was assisting in propelling a hand-car, standing with his back towards the front end, and held a wooden bar which passed across the car through iron sockets where it was fixed by screws passing through the iron and into the wood As the bar was lifted it broke off inside the socket, whereby plaintiff was injured.</p> <p>Held, that the defect was not obvious, and it could not be said as matter of law that such an inspection as might have discovered the defect was required.</p>

<p>Pbesbnt: Douglas, O. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(I) Foreign Corporations. “Doing Business.” Service of Process. Jurisdiction.</p> <p>A foreign corporation which merely solicits contracts in this State to begin and continue out of the State is not “doing business” in this State within the meaning of the court and practice act, section 526, which provides “When a writ of summons shall be issued against a foreign corporation doing business in this state, it shall be served by leaving an attested copy thereof with any clerk or agent in this state of such corporation, or with the attorney of such corporation appointed under the law upon whom service may be made as against such corporation.”</p>

<p>Bill in Equity seeking construction of will certified by the Superior Court under provisions of section 338 of the court and . practice act.</p>

<p>Present: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>(1) Presumption of Death from Absence of Seven Years.</p> <p>Where one has been absent from his home and unheard of by his family for seven years, a presumption of death arises, warranting the granting of administration upon his estate. Following In Re Truman, 27 R. I. 209.</p>

<p>Pbesent: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p>■(1) Negligence. Master and Servant. Unsafe Premises.</p> <p>Plaintiff, a domestic servant, in returning to the premises, about midnight, passed through an unfastened gate leading to a passageway which she had ■seen other servants use in entering the premises, but which she had never used before, of the danger of which she had not been warned, whiclqshe supposed was safe and which was a more convenient way for her to use, fell into a depression and was injured:</p> <p>Held, that it was negligence on the part of the defendant to leave the gate unfastened at night, without a light or giving warning of the danger, and that plaintiff was not guilty of contributory negligence.</p>

Trespass on the Case for negligence. Heard on exceptions and petitions of defendant and petition for leave to file in the Superior Court a petition for new trial, for newly discovered evidence, granted.

<p>Pubsent: Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p> <p> Libel. Translations. </p> <p>Where in an action of libel based on a publication in Italian, while there was a variance between the translation set out in the declaration and that made at the trial, yet both agreed in matter clearly libelous, and the exact words of the Italian original were set out in the declaration, and the defendant admitted that the plaintiff was the person referred to, a verdict for the defendant was wrongly directed.</p>

<p>Pkesent : Douglas, C. J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.</p>

<p>As by Gen. Laws cap. 183, sec. 4, clause 6, prescribing the standard form of insurance policies, any variations may be added to the policy, the only imperative force of the statute is to prescribe the type and form of such modifications, and the parties may make their own contract notwithstanding, so that a contract made thereunder can not be said to be made under duress or compulsion so as to abridge the right of trial by jury.</p>

<p>The intent of the statutes relative to the election of a superintendent of schools of the city of Pawtucket is that he is to be chosen by the committee under which he is to serve.</p> <p>The custom of a school committee can not change the law under which it is to act.</p>

<p>Gen. Laws cap. 54, § 5, provides “ Upon the abolition or discontinuance of any district, its corporate powers and liabilities shall continue and remain so far as may be necessary, for the enforcement of its rights and duties.”</p> <p>Gen. Laws cap. 62, §§ 8-10, provide for the assessment, by the town assessors, of a tax, upon the ratable property located within the district, to pay any judgment recovered against the district.</p> <p>Pub. Laws cap.. 1101, April 17, 1903, abolished all school districts after January 1, 1904, and provided for the vesting of the property of the district in the town:—</p> <p>Held, that there was no provision in the statutes for the assumption of the debts of the school district by the town unless the town should voluntarily assume such debts.</p> <p>Held, further, that the corporate powers and liabilities of the districts were continued so that the collection of the indebtedness owing by any district January 1,1904, which had not been expressly assumed by the town, might be enforced against the district and the property located therein, and that the provisions of chapter 54, section 5, had not been repealed; were not inconsistent with chapter 1101, and were applicable to such districts.</p> <p>Held, further, that chapter 62, sections 8-10, furnished full legal relief for the collection of the debts from the districts.</p> <p>Held, further, that towns which had not expressly assumed the indebtedness of the districts at the time of the abolition were not liable for the indebtedness created by such districts and existing at the time of their abolition.</p> <p>Held, further, that the only method of enforcing the indebtedness was that set forth in chapter 62.</p>